Professional Responsibility

VIII. DUTY OF CANDOR TO THE COURT & FAIRNESS TO YOUR ADVERSARY

A. The basics: You cannot engage in conduct involving dishonesty, fraud, or misrepresentation. Even within our adversarial system these duties can trump conflicting duties of confidentiality and loyalty to your client. B. Duty to present facts and evidence truthfully. You must not make a false statement of material fact or offer evidence you know is false to a tribunal, or fail to correct a false statement of material fact or law that you previously presented. 1. Client perjury. You must not knowingly facilitate client perjury. a. In a civil case, you must refuse to call a witness, including your client, if you know he intends to perjure himself. b. However, criminal defendants have a 5th amendment right to testify on their own behalf and a 6th amendment right to effective assistance of counsel. You also have an ethical duty to protect client confidences. How do you balance these rights and duties? Bombing Defendant Ted tells you that he intends to testify falsely that he has never owned a typewriter to type manifestos against technology. What should you do? Take reasonable remedial measures: 1) Counsel Ted to testify truthfully or not take the stand, then if that fails, 2) You may try to withdraw from the case, then if that fails, 3) ABA: Tell the judge. The right to counsel and the duty of confidentiality do not shield perjury. *CA cases say: Allow the defendant to testify in narrative fashion, but do not further the deception. (E.g., don't facilitate with questions, argue points later to the jury). What if, only after the proceeding ends, Ted tells you that he lied? Take reasonable remedial measures, e.g., counsel him to recant, but your duties end after the proceedings (after the time for appeal has run.) 2. You must not counsel or assist a witness to testify falsely or to become "unavailable." Unless local law prohibits it, you may pay basic expenses of a witness and reasonable fees for expert witnesses, as long as payment is not contingent on the content of the testimony. The morning that Ted's brother is to testify, you discover that he plans to lie and claim that Ted was with him across the country that day. If he refuses your advice to testify truthfully, what do you do? Refuse to put him on the stand. 3. If you do not know, but only reasonably believe, that testimony is false, these rules are permissive. C. Duty to produce evidence. 1. Basic idea. You must not suppress any evidence that you or your client has a legal obligation to reveal or produce, regardless of your duty of loyalty. You must not obstruct access to or tamper with fruits or instrumentalities of a crime. Erik brings you a shotgun saying he killed his father with it. He is charged with murder, and you are subpoenaed for the production of physical evidence received from your client. Must you turn over the gun? Yes. It is not insulated by confidentiality or privilege. May you disclose what Erik told you about the gun? No. Draw a line between physical evidence and confidential information! 2. Interference with evidence. What if Erik told you he threw the emptied gun into the bushes behind his house? Your investigator finds it but leaves it untouched. May you be compelled to tell the authorities about it? No! You can look but don't touch. If your investigator retrieves the gun and examines it, may she then be compelled to produce it for the authorities? Yes. Tell where she found it? Yes, because an attorney or her agent may be compelled to testify as to the original location or condition of the gun. May you reveal the source of the information about the gun's location? No. —You may retain evidence for a reasonable time to prepare your client's case, e.g., to conduct tests so long as they will not alter the evidence. 3. "Ex parte" proceedings are communications with the judge without your adversary present. Your ethical duties of candor to the court and fairness to your (absent) adversary require you to volunteer relevant information, trumping the normal presumption that you not reveal facts harmful to your client. 4. Prosecutors have a special duty to timely disclose evidence favorable to the defense. This ethical duty exceeds the Constitutional Brady obligation, requiring disclosure regardless of admissibility or impact on outcome. —Prosecutors have higher ethical obligations than other lawyers. The basic duty of prosecutors is to seek justice, not just to win cases. They must have probable cause. D. Duty to state the law truthfully. Knowingly making a false statement of law or presenting frivolous claims or defenses to the court is subject to discipline. Be candid about the law and cite to adverse authority if controlling and on point. E. Duty to uphold the law. 1. Assisting in a crime. If continued representation would require you to commit or assist in committing a crime, you must withdraw! If your client persists in criminal acts, but you are not assisting, you may withdraw. 2. Preventing your client from committing a crime. a. If your client is going to commit an act reasonably likely to result in reasonably certain death or substantial bodily harm, your disclosure of confidences is permitted. *In CA, follow the III.B.3.a. safeguards before disclosure. b. If your client's crime or fraud would only cause substantial financial loss, and if your services were employed in it, the ABA permits disclosure. *CA forbids any disclosure for these crimes.

XI. DUTIES OF SUBORDINATE LAWYERS

A. Subordinates. If you are under the control or supervision of another attorney, e.g., a senior partner, who ratifies or orders you to take an action violating an ethical rule, is that OK? It depends! 1. Your ethical responsibility if it is a clear violation: You are subject to discipline. 2. Your ethical responsibility if it is a debatable problem: The supervisor is solely responsible. 3. Your supervising partner's ethical responsibility: If he ratified the action or knew of the conduct and failed to take action, he is in violation. B. Managing partners must also make reasonable efforts to ensure that the conduct of all firm employees or outsourced workers comports with the professional obligations of a lawyer, including non-lawyer assistance.

V. FINANCIAL DUTIES TO YOUR CLIENT

A. Attorney fees. 1. In non-contingent fee cases, agreements must include: how the fee is calculated; what services are covered, and the lawyer and client's duties. *CA also requires: agreements must be in writing, unless (i) the fee is under $1000, (ii) with a corporate client, (iii) for routine services for a regular client, or (iv) it's an emergency or impractical. 2. In contingent fee cases: a. Fee agreements must be written, signed by the client, and contain: 1) Your percentage; and 2) What expenses will be deducted from the recovery; and 3) Whether your percent is taken before or after expenses. —*CA also requires that agreements state: 4) How work not covered by the contingency fee will be paid, and 5) That lawyers' fees are negotiable. b. Limits on contingent fees: The ABA prohibits contingent fees in: domestic relations and criminal cases. *CA rules are silent, and its case law allows contingent fees in domestic cases if they don't "promote dissolution" of a savable marriage. c. Termination before contingency / judgment. After a year of work, Bud fires his lawyer Vinny before the case is tried or settled. If they had a contingent fee agreement, can Vinny recover any fees? If and when Bud wins, then Vinny can recover in proportion to the work he did. 3. When are fees too high? ABA Rule: Fees must be reasonable, taking into account the labor, novelty, difficulty, skill and timing required, result obtained, the experience of and other demands on the attorney, fee arrangement, etc. *CA Rule: Fees must not be unconscionably high. Bud hires Vinny to represent him in a later malpractice case. Vinny drafts a contract providing that Vinny will receive 1/3 of the recovery as a contingent fee, and that if Bud fires Vinny or refuses a settlement offer that Vinny believes is "fair and reasonable," then Bud will immediately pay Vinny $600 per hour for all work done to date. OK? —Contingent fee: Likely ok. —Refusal of settlement offer as grounds to W/D? Ok. —$600/hr. payment? That's iffy. If it's a good faith valuation of Vinny's service then ok. If it's functionally a penalty or forfeiture, then it is not enforceable. Lawyer represents two defendants in a mass tort case, Company A and Company B, on an hourly fee basis. Lawyer attends a 2 hour status conference on the case representing both clients. May Lawyer bill 2 hours to each? Ordinarily, "double billing" is considered an unreasonable fee and dishonest. * CA allows if: (a) The fee charged to each is "not unconscionable"; (b) the attorney clearly disclosed the billing practice at the outset of the relationship; and (c) obtained client consent. —The ABA encourages arbitration in fee disputes. *CA requires a lawyer to participate in fee arbitration if the client sues and requests it. 4. Fee splitting. Focus on the party/entity with whom you will share fees: a. It is generally OK to split fees with lawyers in your law firm. b. You may split fees with lawyers outside your firm only if the total fee is ethical and there is written disclosure and client consent. The ABA further requires the division be proportional to the work done by each attorney, unless each is jointly responsible for the action. Jacob gets a great personal injury case, but it's based in LA, which he regards as a grid-locked armpit. He refers the case to Meyer, who does all the work and wins a million bucks. Can Meyer send Jacob a Hummer as thanks for the referral? ABA: No, Jacob did no work, so it's not proportional. *CA: OK if the total fee isn't unconscionable, and the client consents. c. Fee splitting with non-lawyers is generally not allowed (protects your judgment and prevents the unauthorized practice of law). —Exceptions are: (1) death benefits paid to a deceased lawyer's firm or heirs for his work, (2) salaries paid to non-lawyer employees, and (3) sharing of court-awarded legal fees with a non-profit organization that employed or recommended the lawyer. —A lawyer may pay the usual charges of a qualified lawyer referral service. 5. Partnership with non-lawyers in providing legal services is prohibited for any practicing lawyer. Nonlawyers cannot be partners, shareholders, officers, or control or direct your professional judgment. —Reciprocal referrals with other professionals are OK if they are not exclusive and you explain the arrangement to the client. —Ethical rules apply to any "law related services" you personally provide. If provided by an entity you only control, you must disclose that attorney-client safeguards do not apply. "Foreclosure Fixes" employs non-lawyers to counsel homeowners about loan renegotiations. Its ads promise legal services, but clients cannot choose their lawyer and are not told what legal fees are incurred. Lou Lawyer partners with Foreclosure for $150 a case to file boilerplate pleadings to delay foreclosure and boilerplate letters suggesting bankruptcy. Violations? Lou solicited via an agent, provided incompetent legal services, formed a partnership with nonlawyers, aided their unauthorized practice of law, and split fees with them. To avoid violations, Lawyer should generate the business himself, review each case for appropriate legal action, and control and supervise the consultants' work. B. Client trust accounts. 1. You have a duty to safeguard your client's property by labeling and storing it in a safe place. 2. Put money held for the client in a client trust account. This includes money received on his behalf, and his advances for costs, expenses and unearned fees. Never borrow or commingle funds with your personal money! a. Use an interest-bearing trust account to hold client funds; interest after bank charges are covered belongs to the client. b. If funds are too small or held for insufficient time to cover bank charges, deposit them together in a "pooled client trust account." The interest (IOLTA) goes to the State Bar for services for the poor. c. You can pay third parties with the client's money with client consent. If you have a fee dispute or if a third party has a lawful claim over your client's funds or property in your custody, you must withhold the disputed portion in the client trust account until resolution of the claim. 3. You have a duty to keep individual client ledgers, render accountings, notify your client of moneys received on his behalf, and pay promptly money due to him. *CA requires you keep records of client property for five years after final distribution.

VI. COMPETENCE & OTHER COMMON SENSE DUTIES TO YOUR CLIENT

A. Duty of competence. 1. You have a duty to render competent service to your client. The ABA defines competence as: using the legal knowledge skill thoroughness and preparation reasonably necessary for the representation. *CA only subjects you to discipline if you intentionally, recklessly, or repeatedly fail to perform legal services with competence. —If you don't know the relevant law, don't take the work unless you can learn it without undue expense or delay, or you work with a lawyer competent in the area. 2. Incompetence exposes you to: (a) discipline by the Bar, (b) disqualification in a litigated matter, and (c) civil malpractice liability. Distinguish malpractice: A malpractice action is a civil case brought by a plaintiff for money damages; a disciplinary action is administrative and brought by the State Bar to protect the public. A malpractice plaintiff must prove a breach of a duty of due care. B. Duty of diligence. You have a duty to diligently and promptly pursue your case to completion. C. Duty to communicate. You have a duty to keep your client informed about the case, convey settlement offers and answer client communications. —If a settlement offer is made to joint clients, convey the offer to all and be sure they agree on the division of the settlement before accepting. D. Accepting representation. You are free to accept or to reject any case. "A lawyer is not a bus." 1. You should accept (not a requirement), as part of your duty to the public and profession, a fair share of pro bono work (without charge). 2. Conversely, you must reject a case if taking it would violate a law or ethical rule. Typical problems are if you are not in the physical or mental shape to take the case (violating the duty of competence to the client). E. Scope of representation. The client makes decisions about her substantive rights (E.g., testifying in a criminal case, accepting a plea or settlement). The lawyer makes decisions on legal strategy. (E.g., choice of motions). If you disagree, you may limit the scope of representation, with client consent. —Never assist a client in conduct you know is criminal or advise how to act illegally and get away with it! F. Duties on withdrawal from representation. 1. Mandatory withdrawal. You must withdraw from a pending case if fired, or if continuing would violate a law or ethical rule, e.g., if your physical or mental condition impairs your competence. *CA explicitly requires withdrawal if a client acts without probable cause and to harass or maliciously injure another. 2. Permissive withdrawal. You may withdraw from a case if you convince the court there is good cause. Recognized causes include your client persisting in a criminal, fraudulent, or repugnant course of action, or failing to fulfill an obligation to you—e.g., a fee agreement—after reasonable warning. The ABA also allows withdrawal if it won't damage the client's interests, if the client has used your services for a crime or fraud, or if representation will unreasonably financially burden you. 3. Procedures for withdrawal. To quit, you must: a. Provide timely notice to the client; and b. Promptly return: 1) Any unspent fee and expense advances, and 2) All of the client's property and material papers. Include everything needed to pursue the case, even your work product. *CA forbids holding your client's materials hostage to get paid! G. Other Duties. Be reasonable and sensible. In the duty of loyalty, the ABA prohibits consensual sex with your clients unless you had a preexisting sexual relationship. *CA Rule 3-120 also excuses preexisting relationships, but allows new relations, with cautions. — Tip: Separately identify duties that can run to multiple entities. E.g., advertising may breach your duty of candor to the public, but also your duty to preserve the dignity of the profession. Give each a separate heading, even if the rule and analysis dovetail.

X. PRESERVING THE DIGNITY OF THE COURT AND ADDITIONAL DUTIES

A. Duty to preserve the decorum and impartiality of the tribunal. 1. Don't try to influence anybody improperly. Before and during trial you must not talk to any prospective or impaneled juror. After trial is over you may interview consenting jurors. 2. No "chicanery": Trickery especially by lawyers or politicians! E.g., referring to inadmissible material or matters unsupported by evidence, asserting personal knowledge of facts at issue. 3. Preserve the tribunal's decorum: Refrain from abusive or obstreperous conduct, belligerence, or theatrics. The rules state: "A lawyer may stand firm against abuse by a judge but should avoid reciprocation...." B. Duty to expedite cases. 1. Under ABA Rules, you have an affirmative duty to expedite cases. In *CA, you must not delay cases to harass an adversary, or for your own personal gain or convenience. 2. You have a duty to follow valid procedural rules and court orders, unless you are making a good faith challenge to their validity. Do not abuse or obstruct discovery. C. Additional duties to the profession and public. 1. To protect the public from incompetence, the unauthorized or unlicensed practice of law is forbidden. Practice while suspended or not admitted is a violation unless allowed by law, a local court order, or limited exceptions. A Texas firm wrote and marketed in California E-Broke software, which asks users to input answers, determines what bankruptcy schedules and exemptions to file, and prepares petitions. Is this unauthorized practice of law in California? Yes. The program activities are "Beyond the capacities and knowledge of laypersons." a. ABA rules on multi-jurisdictional practices ("MJP") allow temporary practice by an out-of-state lawyer in good standing if (i) the lawyer associates with a locally admitted lawyer who actively participates in the matter, or (ii) the services relate to alternative dispute resolution, or (iii) the matter is reasonably related to the lawyer's home state practice and the forum does not require a pro hac vice appearance. b. *CA structures its more restrictive rules governing out-of-state lawyers by practice area. They generally require the lawyer to register with the CA Bar, pay dues, get continuing legal education, and be subject to CA ethics rules. "Registered foreign legal consultants" are limited to advising on the law of their country of licensure. 2. Policing misconduct. Under ABA Rules you must report to "the appropriate professional authority" any other lawyers' or judges' violations of the Rules in any legal or non-legal context if it raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer. *CA does not require external reporting, but can discipline you for knowing about a colleague's violation and doing nothing to prevent it. (E.g., counsel the lawyer, or tell a supervisor.) CA also requires you to self-report if charged with a felony, convicted of serious crimes, or found civilly liable for fraud or breach of fiduciary duty, disciplined or sanctioned, or sued for malpractice three times in a year.

III. THE DUTY OF CONFIDENTIALITY TO YOUR CLIENT

A. General rule: Don't reveal anything "related to the representation" of a client or use that information against her without her consent. The rationale is to maximize trust and therefore candor, allowing the adversarial system to work. 1. Scope. The duty of confidentiality applies regardless whether the client requested it be kept "confidential" or whether its revelation might harm or embarrass the client. Use reasonable electronic security to prevent inadvertent access to or disclosure of client confidences. 2. Timing and Disclaimers. Carmen filled out an online form with background facts on Divorce LawFirm's website. Above the "SUBMIT" button a list of "Terms" stated: "I agree I am not forming an attorney-client relationship or a confidential relationship by submitting this." LawFirm discovered they already represented Carmen's husband in the divorce. Now what? —Rule: The duty of confidentiality can attach before a lawyer-client relationship is formed, or even if none is formed. (If no employment results, the party who wants to disqualify a lawyer bears the burden of proving confidences were actually imparted.) Here, the duty attached because this website disclaimer was not in plain enough terms. Result: LawFirm must withdraw from all representations! Compare: "I understand and agree that LawFirm will have no duty to keep confidential the information I am now transmitting to LawFirm." —Once attached, your duty of confidentiality continues, even after formal representation ends, and even after death! 3. Distinguish attorney-client privilege, the overlapping, but narrower evidence rule that allows the client to prevent you from testifying about confidential communications from her to you. Confidentiality is broader: It applies regardless of the source of the information, to anything not generally known, and to disclosures beyond the representation that could reasonably lead to information about it. B. Exceptions. There are major exceptions to the ethical duty of confidentiality. 1. Consent. If the client consents, you may reveal otherwise confidential information. Your client hires you to get a patent on a newly synthesized steroid. May you reveal his invention to the Patent Office? Yes. You have "implied consent" to reveal what's necessary to render your legal services. 2. Defending yourself. Your client (i) sues you for malpractice, (ii) brings disciplinary actions against you, and (iii) refuses to pay you, forcing you to sue him for your fees. May you reveal confidential information in any of these proceedings? Yes, all of these circumstances, as well as seeking an ethics opinion, fall into the exception for revealing information necessary to establish your claim or defense. 3. If compelled by final court order, law, or other ethical duties. E.g., you may disclose without client consent non-privileged, minimal information for a conflicts check when moving to a new law firm. —Your duty to uphold the law allows revelations to prevent: a. Death or substantial bodily harm: Your client tells you his adulterated drugs have caused the death of one ball player and pose a mortal danger to others still taking it. May you reveal his ongoing distribution? Yes. You may reveal what's necessary to prevent the act, if you reasonably believe it will prevent reasonably certain death or substantial bodily harm. *In CA you must first, if reasonable in the circumstances, (i) make a good faith effort to persuade the client not to commit the act, and (ii) inform the client of your decision to reveal his confidences. b. Fraud or crimes causing financial injury: Your client tells you he stopped distributing 'roids because he now bribes ball players for even more sure betting on the games. May you reveal his confidences to prevent his future crimes? ABA: Yes, if he used or is using your services to commit the crime, and the disclosure would prevent or prevent or mitigate substantial financial loss. *CA: No financial exceptions.

IV. THE DUTY OF LOYALTY TO YOUR CLIENT: CONFLICTS OF INTEREST

A. The black letter law: You have a duty of loyalty to your client. If an interest of another client, yourself, or a third party materially limits or is adverse to loyal representation, you have a conflict of interest. 1. Flag and discuss both potential and actual conflicts. — Tip: Watch for evolving fact patterns where a potential conflict becomes an actual conflict, and IRAC each as distinct issues. *CA strictly requires consent for a potential conflict and an additional disclosure and consent if it ripens to an actual conflict. 2. Ignorance of a conflict is no excuse, unless it arises from short-term legal services under a court, agency, or non-profit program. 3. "Imputed disqualification" means any group of lawyers that work together closely or share responsibilities share each others' conflicts, e.g., private firms or corporate law departments. —Exceptions: When a lawyer's conflicts arise from previous government service or work for adverse parties at a previous firm, representation by her otherwise disqualified colleagues may be allowed with safeguards such as screening the lawyer with the conflict behind an "ethical wall".*CA does not imputepurely personal conflicts to colleagues, and disqualifies, but does not discipline, a lawyer for imputed conflicts. —Tip: If there is more than one lawyer in the facts, check for shared conflicts. 4. Remedies for a conflict will depend on the posture of the case. You might: refuse to take the case; advise multiple clients to get separate counsel; withdraw. B. The approach: The many overlapping, yet gap-filled, conflicts rules fall into three broad types: 1. Representation OK: Some facts might suggest a conflict, but fall outside of the conflicts rules or into an exception. Flag and dispose of these. 2. Maybe OK: Most conflicts may be tolerated if a case by case factual analysis establishes three elements: a. You reasonably believe you can represent everyone effectively, despite the potential or actual conflict. *CA does not require the belief be objectively reasonable; and b. You inform each affected client. If your duty of confidentiality prevents you from fully disclosing information the client needs to understand the conflict, then consent may not be possible; and c. The client consents. *For conflicts that are purely personal to the lawyer, CA requires only written disclosure. 3. Never OK: A few conflicts are "nonconsentable," i.e., consent is prohibited by law or deemed never reasonable, so representation is always prohibited. Consider some major fact patterns that the rules and opinions explicitly address: C. Conflicts between or among Clients. 1. Opposite sides in the same proceeding before a tribunal. Your law firm represents Texaco in labor matters, although you have never worked for it. Lundwall, a former Texaco employee, asks you to help him sue Texaco for cutting off his benefits. Can you? Never. Imputed D/Q (disqualification) means you represent Texaco. Lundwall and Texaco would be in direct conflict in the case. Rule: It is always unreasonable to represent opposing parties in the same matter. 2. Opposing a current client in another matter. If your firm only does transactional real estate work for Texaco, could you take the labor claim of Lundwall v. Texaco? Rule: A representation adverse to a current client in a different matter requires all clients' consent. *CA Statutory exception: there is no conflict when a lawyer represents a policyholder and his insurance company as joint clients, where the insurer's interest in each matter is only as an indemnity provider: NorCal InsCo retains your firm to represent Driver 1 in tort case. May you now represent Driver 2 in a different case against Driver 3 and NorCal InsCo, Driver 3's insurer? Yes, because NorCal is only an indemnity provider, it falls into the exception. 3. Two clients with inconsistent positions. You need to argue both for and against the Managed Care Act in two different appeals. Is that OK? Yes. Positions usually don't create conflict, but if either client would be disadvantaged you must obtain consent. 4. Representing multiple clients in the same matter raises significant risks that your service may become materially limited as a result of the others' interest. These potential conflicts generally require disclosure and consent. Examples are representing: —A corporation and any of its directors, officers, shareholders, or employees; —Both spouses in an uncontested divorce or drafting wills. Dr. Kevorkian's insurance company hires you to defend him and it in a malpractice action. This presents a potential conflict, but is OK with reasonable consent. Now, however, Kevorkian tells the medically "unorthodox practices" he used on the plaintiff were not covered by his malpractice insurance policy. Now there is a direct conflict between Kevorkian and his insurance company over coverage. Best remedy for this actual conflict? Withdraw from both and advise them to get separate counsel. You must at least withdraw from representing InsCo because you have relevant, confidential information from Kevorkian that you must not use; thus you cannot fully pursue loyal representation of InsCo. —Tip: Always look for confidentiality breaches in multiple client representation. 5. New clients in matters related to former clients'. If confidential information from a former client might be relevant to a new client's matter, you may be violating your continuing duty of confidentiality and your duty of loyalty to your former client. Rule: You cannot take on a new client with interests materially adverse to a former client without the former's consent. Kris asks you to represent him divorcing Kim, but your senior partner once represented Kim in a business deal. OK? It depends on the nature of the work done. What if your partner had only represented a real estate venture in which Kim was a limited partner? It's likely ok. Because Kim was only a limited partner, you know little about her. What if you once defended Kim against trademark infringement charges, gaining access to her private files. Can you use that knowledge now to represent Paris in an infringement action against Kim? Rule: Using non-public confidential information against a former client is unreasonable without consent. —Ask: Do the representations overlap in function, scope or information? 6. Former government lawyer now in private practice. a. The ABA bars a government lawyer who worked personally and substantially" on a "matter" from working on that same "matter" later in private practice without the government's consent. As an Equal Employment Opportunity Commission lawyer, you worked on regulations defining "fair pay" at the EEOC. Can you litigate the meaning of those regulations at your new private firm? Yes, regulations are not a "matter." What if you litigated a fair pay claim against Halliburton. At your new firm, may you now represent Halliburton in that case without the EEOC's consent? No, that is a "matter", i.e., a specific dispute between specific people over specific issues. b. Imputed disqualification. May other members of your firm work on Halliburton's case? Yes, if the three ABA conditions for an exception to imputed disqualification of colleagues of former government lawyers are met: 1) You are screened off; and 2) You do not share any part of the fee in the matter (pre-arranged salaries or partnership shares are OK); and 3) Your former Government employer is informed. c. Third-party neutrals. What if you were a judicial clerk on the Ninth Circuit and worked on the EEOC v. Halliburton case? Judges, clerks, arbitrators, and other third party neutrals require consent of all parties. d. *CA explicitly disqualifies a prosecutor in a case from later working on the defense side of that case. CA is silent on civil cases, but case law allows screening like the ABA. D. Conflicts between lawyer and client. 1. Gifts to the lawyer. You must not solicit a substantial gift from a client, or draft a legal instrument for a client who is not your close relative, if it provides a substantial gift to you or you relatives. 2. Limiting liability. You cannot limit your client's right to report you for professional misconduct or to cooperate in an investigation. You cannot limit your malpractice liability when you enter into a relationship with your client, unless, under ABA Rules, the client is independently represented in making the agreement. *CA bars malpractice limits. —If a client makes a malpractice claim against you, you can only settle after written advice to the client to consult an outside lawyer first. 3. Publication rights contracts. Halfway through his criminal trial, Defendant offers to sell you rights to his story to raise some needed cash. Can you accept? ABA: No. Not before the representation has ended. *CA: Maybe. CA case law discourages contracts during proceedings, but allows them if the judge is satisfied that the client clearly understands and consents. 4. Loans to your client. The ABA forbids all financial assistance, except litigation expenses for an indigent client and the advance of litigation expenses in contingent fee cases. *CA forbids promises to pay a prospective client's debts, but allows loans to a client in all matters for any purpose with a written loan agreement. 5. Use of information. Use of confidential information to a client's disadvantage, without her consent, violates the duties of both loyalty and confidentiality. 6. Business transactions or adverse interests: "First Discovered Over Coffee." You may enter into business with a client or obtain an interest adverse to hers only if: (a) the terms are Fair to the client, (b) Disclosed in understandable writing, (c) the client is advised to consult an Outside lawyer, and (d) your client provides Consent in writing. a. Transactions A law firm agreed to do employment law work for a start-up company in return for "payment" in the form of shares of stock equal to the value of its services. Assuming that the work is valued reasonably, and the transaction is documented, may it do so? Yes if it is fair and reasonable under the circumstances known to the lawyer when the interest was acquired. —Be cautious if the investment is by individual firm members, or if the acquisition is a major asset that might distort the firm's advice to the company, e.g., regarding disclosure of bad news. b. Board service Service on the Board of Directors of a non-profit legal services organization is allowed. There is also no bar to sitting on the Board of a corporate client, but it is discouraged, because it is likely to compromise loyalty and confidentiality. Attorney Shaha is a member of the Board of Directors of World Bucks, Inc. Paul, World's CEO, asks Shaha to defend him in an investigation of his alleged embezzlement of company money. May Shaha represent him? No. Shaha has a fiduciary duty to the corporation in her personal capacity as a member of the Board. World and Paul are in direct conflict, so Shaha cannot be loyal to both. 7. Trial counsel as a necessary witness. The ABA Rules bar you from appearing as counsel and witness in the same trial unless: (i) your testimony is uncontested or (ii) about your legal services rendered or (iii) if your distinctive value to the case means withdrawal would impose substantial hardship on the client. If testimony might prejudice the client, consent is required, and the conflict is imputed to colleagues. —*CA is less restrictive: you may testify in any bench trial, and—if the client consents—in a jury trial. 8. Close relationships with your adversary's lawyer. You can't oppose a party represented by your relative without client consent. "Close relations" include: immediate family, i.e., your parent, child, sibling, and spouse. *CA explicitly recognizes other "intimates." As a purely personal conflict, it requires only written disclosure. CA also requires disclosure of any legal, business, or personal relationship with any party forthwith. —This purely personal conflict is not imputed to colleagues, nor is a sexual relation with the client (detailed at VI.G.). E. Conflicts due to Third Party interference. 1. General rule: Your sole duty is to your client. Not to any 3rd Party. 2. Payment for your services from a third party is permitted only with informed client consent. Confidences cannot be shared. 3. Organizational clients. A lawyer must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary. a. Federal laws govern securities lawyers: You are in-house counsel at Reron. You discover the Chief Operating Officer materially violated securities laws. You must report the matter to the CEO or Chief Legal Counsel. If they do not respond, you must go to the highest authority in the company. Finally, if you reasonably believe it necessary to prevent fraud, perjury or substantial injury to the organization or investors, or to rectify financial injury from a violation that involved your services, then you MAY disclose confidential information to the Securities Exchange Commission without client consent. b. ABA Rules similarly mandate "reporting up," and permit limited "reporting out." * CA's more restrictive confidentiality rules are preempted by the federal securities law.

II. ORGANIZING YOUR ESSAY

A. The building block: "The lawyer has a duty of (fill in a duty) to (fill in a person or thing) . 1. The bulk of duties are those owed to your client(s). These are: CLIENTS LOVE FIERCE COUNSEL Confidentiality Loyalty Financial Responsibility Competence Other reasonable things 2. Duties to entities other than your client(s). Mix and match: COURTS FEEL DIFFERENTLY Candor/Truthfulness Fairness to Adversaries Dignity/Decorum to Legal Profession Other reasonable things Duty to Court/ Adversaries (Parties and Their Counsel)/ Decorum to Legal Profession, Third Parties, Public Mnemonic: CLIENTS LOVE FIERCE COUNSEL; COURTS FEEL DIFFERENTLY. B. Building an essay. Try "FIRAC" by looking for any ethically questionable fact triggers. Then, within the call of the question, use the checklist to identify every major duty that you have to each individual client. Next, under each of these client duties, list any conflicting duties to other clients or entities. This is one way to organize your Issue outline. Now flesh out these clusters by discussing the Rules-Application/Analysis-Conclusions for each duty. Finally, resurvey the problem for any miscellaneous duties, e.g., to the public or profession, that you haven't discussed yet. —Use headings and skip lines!

I. COVERAGE ON THE CALIFORNIA BAR

A. What body of law to apply. The calls of recent PR questions say "answer according to both California and ABA authorities." If the call is unclear, you should also answer with both. Thus you must study: 1. The ADA Model Rules of Professional Responsibility, the modern majority position tested on the MPRE. (The ABA Model Code is obsolete.) These models merely guide states, and have no effect unless adopted by a state. 2. Significant California law distinctions. California ethics standards overlap and differ from the ABA Model Rules in content and numbering. They draw from the California Rules of Professional Conduct, California Business and Professions Code, state case law, and ethics opinions. 3. The CA Bar does not cover the Code of Judicial Conduct. B. Formats: PR is tested on every examination in essays and/or performance tests. PR essays are often free-standing and in cross-over format. —Essay Tip: Don't chase phantom PR questions.

VII. DUTIES OF CANDOR TO THE PUBLIC & DIGNITY OF THE PROFESSION: ADVERTISING & SOLICITATION

ADVERTISING & SOLICITATION A. Advertising. This refers to a lawyer's communication with the public at large. 1. Advertising must not be false or misleading. a. Don't mislead or omit material information. Ally advertises that she prepares "simple wills" for $300. However, 95% of the wills she writes involve "complications" that require additional fees. Is her ad misleading? Yes. b. Don't raise unjustified expectations or make unverifiable comparisons. *CA presumes improper any ad that contains guarantees, warranties, or predictions of a result. No testimonials or endorsements may be used unless there is an express disclaimer that they are not a guarantee, warranty, or prediction of a result. 2. Claims of legal specialties. You can explain your fields of practice, such as "practice limited to federal courts." But do not advertise claims of specialization unless you are a "certified specialist." The CA Board of Legal Specialization requires the "4 E's": Experience, an Examination, Education, and Evaluations. ABA Rules allow certification by approved organizations, which must be identified in communications. 3. Advertising must not harass or solicit someone who has said she wants to be left alone. Targeted direct mail is OK, but must meet exact guidelines for labeling as "Advertising Material." 4. Every ad must be labelled as advertising and, if applicable, "a dramatization" or "impersonation." It must identify at least one lawyer responsible for its contents. You must keep records of the content and placement of any ad for two years. 5. *CA presumptions. CA Rule 1-400 lists additional acts that shift the burden to the lawyer to disprove a violation. B. Solicitation refers to individualized contact with a layperson. 1. The rule, with built-in exceptions: Do not seek professional employment for pecuniary gain (profit) by initiating a live or telephone contact with a specific person with whom you have no prior professional, personal or family relationship. Attorney Ann lurks in a chat room designed "to offer emotional support for victims of Hurricane Sandy." She then introduces herself as a lawyer and offers to answer legal questions for a fee. Prohibited solicitation? ABA: Yes, because solicitation extends to "real time electronic contact." *CA: No. CA reads "live or telephone" narrowly. *CA does presume improper communications made at the scene of an accident or en route to a medical facility, and to potential clients that you should know are not in the physical or mental state to exercise reasonable judgment. Is Attorney Ann's chat room overture unethical under this standard? Yes. 2. Agents can't do anything that a lawyer can't do. A lawyer sent a friend into a hospital, dressed as a member of the clergy, to provide injured patients with comfort...and the lawyer's business cards in case they wanted to sue! OK? No. That's solicitation by an agent taking advantage of vulnerable people and dishonesty.

IX. ADDITIONAL DUTIES OF FAIRNESS

IX. ADDITIONAL DUTIES OF FAIRNESS A. The general rules. You have a duty to behave honestly in all dealings, both in and out of legal practice. Even when there are no explicit rules, you must act to promote public confidence in the integrity and efficiency of the legal system and profession. B. Dealing fairly with others. 1. Documents sent inadvertently. During litigation, you open an E-mail from opposing counsel and find an outline of your opponent's strategy for deposing a key witness attached. May you forward it to your client? No. If you know it was inadvertently sent, or sent intentionally but anonymously, you must stop reading and notify opposing counsel. Pending resolution, you must not copy, disseminate, or use the document to your advantage; you will be disqualified! In a document intentionally sent, may you mine "metadata"? Yes, that's just fully considering disclosed material. 2. *CA forbids using threats to bring disciplinary, administrative, or criminal proceedings as leverage in a civil dispute. 3. Communication with adversaries and third parties. You must not lie to people or mislead them as to your interests. You must not violate the legal rights of a person to obtain evidence, or use means with no purpose but to delay, burden, or embarrass them. 4. Communication with represented entities. Unless authorized by law or giving a second legal opinion, you must not communicate with a person you know is represented by counsel on the subject of your inquiry without consent of his counsel. Your client claims that Beatrice Corporation's chemicals gave her child leukemia. Must you have Beatrice's corporation counsel's consent before you interview its site manager? Yes. The prohibition covers any current employee whose communication might bind or be imputed to the organization or constitute an admission on its part. *In CA consent is required for interviews of an officer, director or managing agent. C. Dealing with the press. You have a duty not to interfere with a defendant's right to a fair trial. You and your agents must avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the case. —Exceptions are for: matters in the public record or routine booking information, warning the public, informing them of an ongoing investigation, and statements required to protect your client from substantial undue prejudice from recent publicity not self-initiated. —Prosecutors and their aides must not make comments that have a substantial likelihood of heightening public condemnation of the accused.